12 Wis. 11 | Wis. | 1860
This was an action commenced under chapter 56, R. S., for damages sustained by the flowing of the lands of the respondent. The appellant demurred to the complaint, assigning several grounds of demurrer, which we do not deem it necessary to notice in detail. It appears to us that all the serious objections taken to the complaint, are substantially embraced in the position, that it is not alleged that the respondent was the owner of the land overflowed when the dam was erected, or that no compensation has been made for the injury caused by the flowing. An examination of the complaint clearly shows that it sets forth a good cause of action. It avers, in substance, that the respondent is now, and ever since the- 4th day of June, 1855, has been the owner in fee, and actually possessed of certain lands therein described; that ever since that day, and until the present time, he has-had the right to the use and profits thereof; that the appellant now, and for more than three years past, has kept up and maintained the dam which has caused the waters to flow back on the lands mentioned in the complaint, whereby he has been deprived of the use of said lands, and the same have become valueless, See. He demands judgment, that the damages he has already sustained in the premises be assessed under the provisions of the statute, and also for compensation for all damages which may hereafter be occasioned to the premises forever, in consequence of such flowage.
We do not suppose that it is essential to a complaint of this kind, to negative every possible defense which may exist to the action, and therefore, it was not necessary for the respondent to allege that no compensation had been made for the injury sustaihed. If compensation had been made, it was a proper matter of defense, and would properly be set up in an answer to the complaint.
It does not become necessary to determine, in this case, the question as to whether the owner of land at the time it is flowed, can alone maintain aji action, not only for damages already sustained, but also for damages which may subsequently accrue, after its alienation, by reason of keeping up the dam. It is very obvious that the statute has in view two objects: to give a remedy for damages already sustained, and an estimate of the damages, gross or annual, which may afterwards be incurred. In the case of Walker vs. The Oxford Woolen Manufacturing Co., 10 Met,, 203, it was held, that if an owner of land that is flowed by a mill dam, sells and conveys the land before he has proceeded against the mill owner for damages, he may afterwards maintain an action under the statute, and have a jury to assess the damages caused by the flowing of thelsmá whilsthe owned it. And in Charles et al. vs. The Monson & Brimfield Manufacturing Co., 17 Pick., 70, it was held, that the former owner of a mill is liable for damages occasioned by flowing land while he was the owner of the mill, although at the time when the complaint was filed he had ceased to be the owner and occupant thereof. But in neither of the above cases did it become necessary to decide the precise question discussed upon this demurrer, namely, whether a grantee of land flowed, could maintain an action for damages sustained by him after he purchased the estate. See Hathorn vs. Stinson et al., 1 Fair-
We are of tbe opinion tbat tbe complaint set forth a good cause of action, and tbat tbe demurrer was properly overruled.
Tbe order overruling tbe demurrer is affirmed.